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Craig Kendall v. Bausch & Lomb Incorporated ) and Laser Vision Centers

March 9, 2011


The opinion of the court was delivered by: Jeffrey L. VIKEN United States District Judge




Plaintiff filed a motion seeking the admissibility of prior incidents of DLK*fn1 from blade lot #517984. (Docket 273). This motion was filed in response to the court's earlier directions in its memorandum opinion and order.*fn2 (Docket 252 at pp. 12-14; Docket 271). The motion was fully briefed and is now ripe for resolution. The motion to admit evidence of prior incidents of DLK is granted in part and denied in part.


"The proponent bears the burden of establishing that the 'facts and circumstances of the other incident' are substantially similar to this case." Sheesley v. Cessna Aircraft Company, Civ. Nos. 02-4185-KES, 03-5011-KES, 03-5063-KES, 2006 WL 3042793 *11 (D.S.D. 2006) (citing Drabik v. Stanley-Bostitch, Inc., 997 F.2d 496, 508 (8th Cir. 1993).

"Although evidence of prior accidents may be admissible to prove notice on the part of a defendant, any such accidents admitted must be 'sufficiently similar in time, place or circumstances to be probative.' " First Security Bank v. Union Pacific Railroad Co., 152 F.3d 877, 879 (8th Cir. 1998) (internal quotation marks omitted). "Evidence of other accidents may be relevant to the defendant's ability to correct known defects, the magnitude of the danger, the lack of safety for intended uses, or causation. It can also prove notice of the existence of defects." Id. "For other accident evidence to be admissible, the proponent of the evidence must show that the facts and circumstances of the other incident are substantially similar to the case at bar." Id. at 880. In other words, "for prior accidents to be relevant to establish notice to defendant, accidents 'must have occurred under circumstances substantially similar.' " Id. (citing Lewy v. Remington Arms Co., Inc., 836 F.2d 1104, 1109 (8th Cir. 1988)). "The admissibility of other accident evidence is within the discretion of the trial court and its decisions will not be disturbed unless there is a clear and prejudicial abuse of discretion." Id.

In Lewy, the Court of Appeals for the Eighth Circuit evaluated the propriety of admitting business records maintained by Remington. Plaintiffs presented evidence of records of customer complaints and Remington's Gun Examination Reports (GERs). Lewy, 836 F.2d at 1108. Those complaints and GERs were for a Model 700 rifle, alleged to be similar to the Model 700 rifle which discharged in that case. Id.

"In order to be admissible a proper foundation must be laid showing that the other incidents involving a Model 700 discharging on release of the safety occurred under circumstances substantially similar to the circumstances surrounding the discharge of the Lewy rifle." Id. "Each report contains a statement of the customer's complaint and the circumstances relating to the alleged [firing on release of the safety]. These GERs, as well as the other evidence supporting them, sufficiently established the foundation for the admission of the M700 evidence." Id. Based on these substantially similar circumstances, the Eighth Circuit ruled the plaintiffs had "laid an adequate foundation for admission of the related incidents involving the Model 700." Id.

The Lewy court concluded the prior incidents evidence was relevant to a number of contested trial issues. "First, it was relevant to whether Remington had notice. Notice was a hotly contested issue and was an important element of the Lewy's failure to warn theory of the case." Id. "Second, the evidence was relevant to show causation. Under Fed. R. Evid. 401, evidence of similar occurrences might be relevant to the defendant's notice, magnitude of the danger involved, the defendant's ability to correct a known defect, the lack of safety for intended uses, . . . the standard of care, and causation." Id. (internal quotation marks omitted).

Plaintiff argues the prior incidents of DLK occurring during LASIK*fn3 surgery using a Bausch and Lomb Incorporated ("B&L") AccuGlideTM blade from the same lot as the blade used during plaintiff's surgery are probative because they show:

1. B&L had notice of the defects and danger;

2. B&L could have corrected the defect: and

3. B&L determined the blades from lot #517984 were the only common element that could have caused the DLK.

(Docket 277, p. 1). Plaintiff submits those incidents of DLK are substantially similar to the facts in his case based on the following evidence: (1) "admissions of Bausch and Lomb Incorporated ("B&L"), in the form of employee testimony and B&L business records"; and (2) "affidavits and testimony of the doctors who performed the LASIK procedures that resulted in the prior incidents of DLK." Id.

Plaintiff represents he will "present[] the evidence of prior incidents of DLK through B&L's own records that have been kept in the regular course of its business which are admissible under Rule 803(6)." (Docket 279, p. 2). At trial, to avoid B&L's hearsay objection, plaintiff indicates he will not present the actual customer complaints.*fn4 Id. Rather, plaintiff "intends to introduce B&L corporate memorandums, reports, charts and timelines that the company produced regarding DLK incidents related to lot #517984." Id. at p. 3. Plaintiff argues these prior complaints are admissible to allow the jury to determine how much notice B&L had of DLK occurrences prior to the date of plaintiff's surgery. (Docket 277, p. 8).

B&L Admissions and Employee Testimony

B&L's responses to plaintiff's second requests for admission (Docket 273-2) disclose information relevant to the prior incidents under Fed. R. Civ. P. 36(b). Rule 36(b) provides that "[a] matter admitted under this rule is conclusively established . . . ." Those admissions are summarized, as follows:

Complaints reporting the onset of DLK after LASIK surgery with a B&L AccuGlideTM ...

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